The National Labor Relations Board’s (NLRB’s) “ambush election rules,” which make sweeping changes to the procedures applicable in union representation cases, took effect on April 14, 2015. Despite two pending lawsuits currently challenging these new rules as contrary to the National Labor Relations Act’s (NLRA’s) plain language and legislative history, the NLRB’s Office of General Counsel recently released a 36-page, single-spaced “guidance memorandum” regarding its “streamlined” procedures. Employers need to adjust to this new reality and react accordingly.
The New Election Rules
The NLRB’s new “ambush election rules” make significant changes to longstanding rules governing union elections. In every instance, the changes make it more difficult for employers to communicate with their employees and, therefore, ensure that employees can make an informed choice when deciding whether to vote for or against unionization.
The new rules specifically make the following important changes:
Length of Time Between Petition and Election Date
Filing and Service Requirements
Information Received by the Parties and Prospective Voters
Statement of Position
Timing of the Pre-Election Hearing
Substance of the Pre-Election Hearing
Excelsior List
Election Notice Procedures
Post-Election Procedures
The Rules Take Effect Despite Legal Challenges
Due to the negative effects on employers’ ability to communicate with their employees and ensure that employees can make an informed decision in any union election, the new rules have been roundly criticized. Two groups currently have pending federal lawsuits challenging the rules, one filed earlier this year in the U.S. District Court for the District of Columbia (United States of America, et al. v. NLRB, Case No. 1:15-cv-00009), and one filed in the U.S. District Court for the Western District of Texas (Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, Case No. 1:15-cv-00026). The Associated Builders’ lawsuit, for example, contends that the “purpose of [the new rule] is to achieve the impermissible pro-union objective of accelerating the election process to such an extent that employers will be unable to respond effectively to union organizing campaigns.”
Despite ongoing legal challenges, the NLRB has not been enjoined from implementing and enforcing the new rules. The NLRB Office of General Counsel’s memorandum issued April 6, 2015 confirms that, absent an intervening court decision, the NLRB is implementing and enforcing the changed rules detailed above effective April 14, 2015. Consequently, unless and until a court rules to the contrary, employers must be prepared to abide by the new rules.
The NLRB’s Guidance Memorandum, Memo Number GC-15-06, is available at: www.nlrb.gov/reports-guidance/general-counsel-memos
Employer Response to the New Rules
The significant changes entailed by the new rules severely hamper employers’ ability to effectively respond to union petitions. At a minimum, employers should use the rules’ implementation as the impetus to conduct a strategic review of their union avoidance preparation. Among other things, employers may want to:
Further, employers should continue to monitor developments from the NLRB closely with regard to the new election rules. We will alert you if any court decision enjoins or otherwise affects the rules in their current form. In the meantime, please reach out to your McGuireWoods contact or a member of the McGuireWoods traditional labor team for any questions you may have or assistance needed regarding the new rules or strategically reacting to the rules in an effective manner.